Citation Nr: 1334899
Decision Date: 10/31/13 Archive Date: 11/06/13
DOCKET NO. 07-37 769 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Devon Rembert-Carroll, Associate Counsel
INTRODUCTION
The Veteran had active service from July 1966 to April 1969.
The matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran filed a notice of disagreement in September 2007 and was provided with a Statement of the Case in January 2008. The Veteran perfected his appeal in February 2008 with a VA Form 9.
In September 2011 the Board remanded the case for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).
In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an October 2013 Appellate Brief. The other documents of record are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
FINDING OF FACT
For the entire appeal period, the Veteran's symptoms of PTSD resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, chronic sleep impairment, panic attacks more than once a week, impairment of short term and long term memory, difficulties establishing and maintaining effective work and social relationships, isolation, anger, flashbacks, intrusive thoughts, nightmares, irritability, hypervigilance, exaggerated startle response, difficulties concentrating, and GAF scores of 55, 55-60, 60, and 60-65.
CONCLUSION OF LAW
The criteria for an initial rating of 50 percent, but no higher, have not been met. 38 U.S.C.A. §§ 1155, 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial rating for PTSD arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's statements and post-service VA treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any other outstanding records that have not been requested or obtained.
The Veteran was provided with VA examinations in June 2007 and October 2011. The Board finds that the VA examination reports are adequate because the examiners conducted clinical evaluations, reviewed the Veteran's medical history, and described the Veteran's PTSD in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Legal Criteria
Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999).
In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
In the August 2007 rating decision, the Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2013). Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id.
A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id.
A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.
Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013).
One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the American Psychiatric Association 's DSM-IV, GAF scores from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers).
Background
Post service VA treatment records dated November 2006 to April 2007 and June 2007 to October 2011 shows that the Veteran was treated for PTSD. The Veteran reported that he had a supportive marriage of 22 years. He reported that he had three children from a previous marriage, an adoptive child from his current marriage, and two grandchildren. He reported that he maintained fairly regular contact with his middle child and less frequent contact while the other two. The Veteran reported that he maintained regular contact with his sister, who lived locally with his mother. He also reported that he was not very close to his other sister who lived out of state. The Veteran reported that he had several friends in the area and that he had two good friends that he saw five to six times per week because they exercised together. The Veteran reported that he continued to exercise daily utilizing martial arts techniques for stress relief, while continuing to mentor others in that field. A January 2007 treatment record shows the Veteran had to close his martial arts school of approximately 20 years and was unemployed at that time. The Veteran denied that he and his wife were in financial stress as they sold a piece of investment property.
The Veteran also reported issues with socialization, isolation, anger, anxiety, sleep disturbances, avoidance, recurrent nightmares, occasional daytime flashbacks, frequent intrusive thoughts of combat, avoidance, irritability, difficulties concentrating, and panic attacks a couple times per week. The Veteran's mood was described as mildly to moderately depressed, dysphoric, dysthymic, and anxious. The Veteran's affect was described as blunted, congruent, and variable. The Veteran was noted as being alert, oriented, responsive, compliant, guarded, helpful, and pleasant. It was also noted the Veteran made good eye contact. The Veteran was noted as having good personal hygiene and grooming and as being dressed appropriately. The Veteran did not show any cognitive defects or thought disorders. The Veteran's thinking was noted as coherent and well organized. His overall level of insight and judgment was found to be fair to good. The Veteran's speech was spontaneous and goal directed and of normal rate and volume. His conversation was noted as logical. The Veteran denied suicidal and homicidal ideation. It was also noted that the Veteran had no delusions or hallucinations. A January 2007 treatment record shows that the Veteran tested in the moderate range for depression on the Beck Depression inventory, obtaining a score of 21. The Veteran also scored relatively high on the Posttraumatic Stress Questionnaire (PTSQ), identifying in the maximum range on 9/13 symptom categories. A February 2007 treatment record shows the Veteran scored a 23 on the Beck Depression inventory which placed him in the moderate range for depression. In January 2007 the Veteran was assigned GAF scores of 55, 60, and 60-65. In February 2007 the Veteran was assigned a GAF score of 60-65. In March 2007 he was assigned a GAF score of 60-65. In August 2007 he was assigned a GAF score of 55-60 and in September 2007 he was assigned a GAF score of 60-65.
The Veteran was afforded VA examination in June 2007. The Veteran reported he slept about three to four hours a night on medication but was only sleeping about two hours per evening before medication. The Veteran reported that he continued to have problems with the "authority thing". The Veteran reported that he had dreams or nightmares related to Vietnam almost every night. He reported that he feels quite anxious and does not like being around other people and rarely goes anywhere. He reported that he only drives short distances around his community and that his wife drove him to the appointment since he tends to become very angry around other drivers. He reported that he felt depressed with little enjoyment over the years. The Veteran reported that he had also been experiencing suicidal ideation "every once in a while" but denied any in the prior month. He reported he was married to his first wife for 14 years and has three children, whom he has limited contact with. He reported that he had been married to his current wife for 22 years and that his marriage is good and he has a good relationship with his adoptive son. He reported legal problems in the past and most recently he was charged with simple assault within the prior year after an incident with his adoptive son's wife. The examiner noted there was no recent history of assaultiveness and no history of suicide attempts.
On mental status examination the examiner found the Veteran's thoughts were logical and coherent. There was no evidence of hallucinations or delusions. The Veteran maintained intermittent eye contact during the interview. He acknowledged that at times he wished he was dead but denied any active suicidal ideation, intent, or plan. He denied any imminent homicidal ideation, intent or plan. He reported that he was always able to maintain his personal hygiene and that he assisted with a number of household tasks and yard work. He was independent with respect to activities of daily living. He reported that he was not able to drive long distances secondary to his irritability and reckless behaviors. He was fully oriented to person, place, and time. He indicated that he had significant problems with names and recalling events and that he has some difficulty recalling some of the routines and ways to instruct children in martial arts. The examiner noted this suggested some difficulty with both short term and long-term memory, which may suggest difficulties in concentration. The Veteran denied any obsessive or ritualistic behavior. He spoke with a normal rate and flow of speech. He indicated that he had occasional panic attacks but these did not occur frequently and did not seem to significantly interfere with his life. The Veteran indicated that he had been feeling sad and blue and down in the dumps. The examiner noted that the Veteran did engage in some impulsive aggressive behavior such as tailgating or cutting people off if he believed they had turned in front of him and so on. The Veteran reported that he used to break things but had not done that recently. He denied daytime naps. The examiner diagnosed PTSD chronic mild to moderate and assigned a GAF score of 65.
The Veteran was afforded another VA examination in October 2011. The examiner noted that the Veteran had been paralyzed in a motorcycle accident in September 2007 and had not worked since. Prior to that he was working full-time as a self-employed martial arts instructor. He had his own martial arts school for 22 years, although he reported that he was not bringing in enough money and he supplemented with other jobs, including working at a dye casting factory for 16 years and doing other factory work prior to that. The examiner noted the Veteran was never unemployable due to PTSD symptoms and at present the Veteran was not working due to paraplegia. He noted there was no evidence that PTSD symptoms impaired past work functioning.
The Veteran reported his current marriage was good without any difficulties. He reported that he had not had contact with his three children from his previous marriage in two years. He reported a good relationship with his wife's son whom he adopted. He reported that he keeps in touch with his sister through phone calls and sees his wife's uncle once per year when he drives up from Texas to visit. The Veteran reports that he has friends and that they keep in contact through telephone calls and visits. One is a childhood friend who the Veteran sees every two months or so, and the other friend comes by the house every couple of weeks. The Veteran reported that he does not go out socially since his accident in 2007 due to limited mobility. The examiner noted that although the Veteran was somewhat more limited socially since his motorcycle accident his reports of limited socialization were consistent with his previous examination.
The Veteran reported that he had nightmares of Vietnam nightly. He reported that he gets very little sleep due to these nightmares. The Veteran reported that he also has memories of Vietnam that are frequently triggered by certain smells or the sound of helicopters. These memories last anywhere from one minute to 15 minutes and happen once or twice a week or every couple of weeks. The Veteran reported that he also feels sad sometimes but this comes and goes. He reported that it occurs approximately twice per week, and it lasts most of the day. He reported that he gets tearful and hopeless during these times. He reported that he feels angry approximately twice per week and will typically get quiet. He reported that this has always been his pattern of anger. The Veteran reported that he was fairly active before his accident and at present mostly stays at home and watches television due to his physical condition. The Veteran also reported that he avoids movies about Vietnam. He also reported he and his wife do not buy the newspaper because all of the news is depressing. The Veteran reported that he used to be hypervigilant and on guard but presently he is unable to because he is in a wheelchair and cannot look around him as he did before. The Veteran reported that he jumps "as much as I can" in his chair and that he startles at things such as fireworks and the cat falling off the window sill after it falls asleep. The examiner noted that the Veteran continued to report some mild symptoms of PTSD and that the symptoms had not increased compared to the last examination.
On mental status examination the examiner noted that the Veteran was clean shaven, alert and oriented in all spheres. His grooming and hygiene were adequate. The Veteran's dress was casual but appropriate. The Veteran made good eye contact and was cooperative during the evaluation process. His attention and concentration were good. His memory and intellect appeared to be in the average range. His speech was a bit fluent, productive, of normal rate and volume, and normal latency of response. His thought process was clear, coherent, and goal directed, without evidence of formal thought disorder or psychosis. There were no impairments in thought process or communication. The Veteran reported that his mood was generally good but that he felt down once or twice a week. His affect was subdued. The Veteran reported that he had some passive thought of death but had always had these thoughts. He did not describe ever having any active suicidal ideation or history of suicide attempts or gestures. There was no homicidal ideation, plan, or intent. There were no delusions or hallucinations. The Veteran reported that he sleeps only two hours per night and then takes short naps throughout the daytime. The Veteran experienced depressions symptoms on and off that the examiner noted were just as likely due to his current circumstances as to his PTSD symptoms. The Veteran reported that he sometimes feels that his whole world is coming to an end and he wonders what is going to happen from here and he feels anxiety at those moments. He reported that that those feelings are for a short period of time. The Veteran had not had any reckless or inappropriate behaviors or impaired impulse control or angry outbursts since his last examination. There were no obsessions or compulsions. There were no episodes meeting the criteria for panic attacks. The Veteran worried about things that needed to get done around his house but the examiner noted these worries were within the realm of normal and were not related to generalized anxiety. The examiner diagnosed PTSD mild to moderate and assigned GAF scores of 65 related to PTSD and 55 related to substance use. The examiner concluded that given the Veteran's PTSD symptoms alone he would not be rendered unemployable. However, given the contribution of his quadriplegia on his functioning, it is likely he would not be employable in any work setting.
In an October 2011 statement the Veteran reported that along with the usual symptoms of PTSD such as nightmares, flashbacks, the sights, and sounds and smells that remind of that day, he still has a problem what he calls an abuse of authority. He reported that because of this he has had a hard time with jobs and many problems with the police.
Analysis
Having considered all the evidence of record and the applicable law, the Board finds that for all periods under consideration an initial 50 percent rating for PTSD is warranted.
As outlined above, the Veteran's PTSD has manifested as occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, chronic sleep impairment, panic attacks more than once a week, impairment of short term and long term memory, difficulties establishing and maintaining effective work and social relationships, isolation, anger, flashbacks, intrusive thoughts, nightmares, irritability, hypervigilance, exaggerated startle response, and difficulties concentrating. The evidence of record also showed that the Veteran had difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he has not been in contact with his children from his first marriage for several years and that he is not close to one of his sisters. The Veteran also reported that he feels isolated and has issues with socialization. The Board notes that the Veteran did not exhibit all the symptoms for a 50 percent rating. Nonetheless, the Board finds that the functional impairment due to the above symptomatology during the entire appeal period more nearly approximates the criteria for a 50 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (symptoms recited in the rating schedule for mental disorders are to serve as examples of the type and degree of the symptoms and not an exhaustive list).
Based on the evidence of record, the Boards finds that the Veteran's PTSD symptoms do not warrant an initial rating of 70 percent. The Board notes that the June 2007 examiner noted that the Veteran did engage in some impulsive aggressive behavior such as tailgating. The Board also notes that at the June 2007 VA examination the Veteran reported that he experienced suicidal ideation "every once in a while". However, the examiner noted the Veteran had no history of suicidal ideation. Additionally, VA treatment records and the October 2011 VA exam show the Veteran repeatedly denied suicidal ideation. As such, the Board finds that the effects of the Veteran's PTSD symptoms have not been described to be of a type, frequency and severity that are consistent with the level of impairment contemplated by the criteria for a 70 percent schedular rating. The October 2011 VA examiner noted that the Veteran did not exhibit any obsessional rituals which interfere with routine activities. The Veteran's speech was repeatedly found to be normal. The Veteran reported panic attacks that occurred twice a week but did not report, nor did any examiner note, that he had continuous panic or depression affecting the ability to function independently and effectively. In fact, the June 2007 examiner noted that the Veteran experienced panic attack that did not seem to significantly interfere with his life. The Veteran was repeatedly noted as oriented to all spheres and appropriately dressed with good hygiene. The Veteran did not report, nor did any of the examiners note, that the Veteran had difficulty adapting to stressful situations. Furthermore, while the Veteran reported difficulty in social relationships the evidence of record does not show the Veteran has an inability to establish and maintain effective relationships. The Veteran reported a long-term supportive marriage, a good relationship with his adoptive son, that he keeps in touch with his sister that lives locally with his mother, and that he has two close friends that continue to visit and call him. Additionally, the Veteran ran a martial arts studio for over 20 years and mentored students in martial arts. The Board finds that the Veteran's social interactions with his wife, family, and friends, as well as his ability to run a martial arts studio for over 20 years, show the Veteran's symptoms do not rise to an inability to establish and maintain effective relationships. As such, the Board finds that the evidence shows the Veteran is not deficient in most areas and therefore his PTSD does not more closely approximate a 70 percent evaluation.
The Board's finding that the Veteran's disability does not meet the criteria for a 70 percent rating entails a finding that he does not meet the criteria for a 100 percent rating. Total occupational and social impairment has not been. As stated, the Veteran maintains social relationships with his wife, adoptive son, sister, and two friends. The Board notes that the Veteran is currently unemployed. However, the October 2011 VA examiner noted that he is unemployed due to his September 2007 motorcycle accident, which resulted in paraplegia, not his PTSD. Additionally, while the Veteran has suffered memory loss, there is no evidence of memory loss for names of close relatives, own occupation, or own name. Similarly, his symptoms have not been manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place. The Veteran's thought process has been found to be normal. The Veteran has been noted as having no delusions or hallucinations and the Veteran's behavior has not been found to be inappropriate. The Veteran denied homicidal and suicidal ideation and the Veteran has been found to be oriented at all times.
The Board acknowledges that the Veteran has been assigned GAF scores of 55, 55-60, 60, and 60-65. GAF scores from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers). While the GAF scores are not determinative by themselves, the Board finds that these GAF scores, combined with the evidence of record, illustrates that the type, frequency and severity of the Veteran's PTSD symptoms reflects a level of impairment that most closely approximate a 50 percent disability, but not higher, throughout the entire period on appeal.
The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). However, there is no objective evidence that any manifestations related to the Veteran's PTSD are unusual or exceptional. For the reasons discussed above, the Board finds that the schedular rating criteria adequately contemplate the impairment caused by the Veteran's PTSD. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008).
Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Board notes that the Veteran is unemployed to due his quadriplegia. As there is no evidence that the Veteran's service-connected PTSD precludes employment, the question of entitlement to a TDIU is not raised.
ORDER
An initial rating of 50 percent, but no higher, for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits.
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs